I have a question on “grandfathering.” Last year, I bought a unit in an 86-unit suburban, middle class townhome type community in SE Pennsylvania (we have grass and trees). It was built in 1992. A few years after building, owners were allowed to build 12′ X 16′ decks off the rear to cover over original concrete patios. The wood decks were to be of a certain design and could not be “painted or stained only a clear wood preservative could be applied.” Of course my deck was painted (or solid stain used) at minimum six years and two owners ago. Now it needs repainting. The current and intended new color would be consistent with the existing community trim colors (Ashley Grey on shutters and trim). My left door neighbor ‘stained’ his a solid almost yellow color last year while my right neighbor just did a dark brown. No one has complained about any of this. 1) Can I repaint? 2) If someone were to complain, do I have wiggle room? To refinish back to original natural wood would basically involve complete rebuilding of the deck. I’m thinking better to ask for forgiveness than permission.

Mister Condo replies:

M.G., your question isn’t so much about “grandfathering” as it is whether the sins of the father should be passed to the son. Grandfathering would be if the association previously allowed paint or stain to be sued and you simply wanted to reapply it. In your case, the previous owner painted the deck in violation of the association’s architectural guidelines. To make matters worse, you have neighbors on both sides that have done the same. This is indeed a sticky wicket. Let me offer some friendly advice to help you decide what to do next.

The Board of the Association is the governing body charged with architectural compliance and rules enforcement. They would be well within their rights to insist that all unit owners comply with the architectural guidelines regarding decks set forth in the rules and by-laws many years ago. They could go unit-to-unit, citing observed violations and issuing warnings and/or fines and/or bringing suit against unit owners who didn’t comply. But, from what you have told me, that isn’t happening and may not be too likely to happen.

Ideally, they would simply change the rule and allow other choices of stain besides clear wood preservative. As you know, the various ages of the decks causes color variations any way and the clear coat will not establish uniformity, which I assume is the goal. This, again, becomes a sticky wicket because the Board may only approve two or three stain or paint variations and, once again, there will be numerous decks out of compliance. These decks could be “grandfathered” and instructed that any new paint or stain applications would have to be in compliance with the association’s new guidelines.

Or, you could just go ahead and paint your deck using your “ask for forgiveness versus permission” ideology. This may be the most practical solution, as there doesn’t seem to be any issue with the Board warning you that if you do this there will be consequences. I will say that you may face consequences if the Board cites you for non-compliance but you may have the upper hand, as they have not uniformly demanded compliance from all unit owners. All you can do is make the best decision for you based on the facts at hand. If it were I, I think I would do as you propose. Enjoy your freshly painted deck this summer! All the best!

My condo association consists of 22 units with a 7-member board. Recently they decided on a capital expenditure of $100,000. The talk is that they want to borrow @ 7% over 7 years and equally assess all homeowners, interest included, over this 7 year period. There are a handful us that want to pay our portion up front to avoid this interest charge and resale value killer. The board says no and that we cannot pay upfront and we have to go along with the terms of the assessment. To me, this is ludicrous and I want to fight it. Am I wrong?

Mister Condo replies:

J.K., you are always free to fight any decision your Board makes. However, since 7 of the 22 units are already represented on the Board, I find it highly unlikely you would prevail on popular opinion. As the democratically elected representatives of the unit owners, the Board is in the best position to make business decisions on behalf of the community. However, many associations require more than just Board approval for things like special assessments and borrowing money on behalf of the association. You should check with your governing documents to see if the Board has acted properly in making this loan and also in handling the $100,000 expenditure. It is quite possible that you could prevail if they made a technical error in the approval of the loan or the expenditure, in which case, you may be able to force them back to the table to handle the appropriation in accordance with your governing documents. If so, I would suggest you strongly encourage like-minded unit owners to encourage the Board to allow for an option of pre-payment of the assessment, which I assume is roughly $5,000 per unit. If you are strictly concerned with resale value of your unit, you could offer an incentive to a purchaser whereby you would lower the cost of the purchase by the remaining amount of the assessment. That should nullify any detrimental effect on the resale value of your unit and should cause you no harm, as you are willing to pay the assessment in its entirety right now. All the best!

We have melting ice that has caused water damage to our ceiling for three years in a row. The HOA sent a roofer who deemed it to be caused by ice damming. They will not fix our roof as they claim ice damming is not covered. They also will not fix our ceiling, which our condo insurance claims the HOA is responsible for. Our insurance paid us to repaint but we can’t until the roof is fixed and the Sheetrock is replaced. Where do we go from here?

Mister Condo replies:

A.M., in a word, you go to court. This is exactly what insurance is for. Mother Nature caused damage. The association’s insurance company says it won’t pay. Your insurance company says it won’t pay. You can’t touch the roof, as it is association owned property, which means they are likely responsible for the repair. Since their insurer won’t pay for the repair, the association says they won’t fix the roof. That may save them some money but that doesn’t release them from liability.

As you know, I am not an attorney so I cannot offer legal advice in this column. However, I can offer friendly advice and that advice is to speak with a qualified attorney who will likely instruct you to bring an action against the association for not repairing the roof. Everything under that roof may be your responsibility and, in particular, your personal insurer who seems to be working with you just fine. It is quite possible that the association didn’t have sufficient insurance coverage in place to cover the ice damming and resultant damage. That doesn’t relieve them from the responsibility for the repair or future liability. Pursue the legal remedy path and hope that they settle before it has to go to court. Ideally, they will repair the roof and purchase additional insurance for future incursions. Good luck!

We live on a small private road that has left the power in one couples’ hands for ages. We have basically NO say and are hostage to an archaic agreement. We are frankly sick of it and considering legal action. Do we have a chance at establishing a real association where everyone pays a fair share? Thank you!

Mister Condo replies:

T.O., small associations can have big problems as you have seen firsthand. The short answer is “yes”, you can establish a real association where everyone pays a fair share but it will be determined by your original governance documents that established the Homeowners Association (HOA). Inside, you will find how dues are to be collected and what requirements are in place for folks to serve as officers of the association. Of course, it also requires that there are folks of the same opinion as you that the people in power are abusing their power and not running the association properly. It is possible that they run it the way they do out of a sense of practicality and that no one has stepped forth to volunteer their own time to serve on the Board.

Legal action may be necessary if these folks don’t want to run the association according to the rules of governance. However, that legal action may cost you and any others looking to bring suit if you need to hire an attorney to assist. Ideally, a meeting of the homeowners will be called and the rules of governance will be followed. At the very least, there are usually two orders of business that need to take place annually. The first is the ratification of a budget, which includes the proposed fees and expenses of the association. The second is the election of Board members. Once those two things happen, you should be able to act as a functional HOA once again. All the best!

Our condo association wants to borrow $178,000 to refurbish our HVAC system. We know we cannot get a mortgage loan based on ownership of real property, but some states allow Associations to secure loans based on their ability to raise fees. Where do we find the relevant law?

Mister Condo replies:

E.B., thank you for writing. As you know. I am not an attorney nor am I an expert in Maryland law. For legal opinions about condominium law in your state, you should speak with an experienced community association attorney. You can find a great list for your state at the Chesapeake Region Chapter of the Community Associations Institute at http://www.caimdches.org/ListByCategory.aspx?Category=Attorney. I do know that some of the relevant laws can also be found at that same website at http://www.caimdches.org/legislation.aspx

As a practical matter, I do have some experience with community association loans. Banks that lend to community associations are highly specialized at what they do. You are correct that the loan you are seeking is not a traditional mortgage. In fact, loans to community associations are more closely related to municipal bonds in that the lender looks at the community as a whole and will evaluate the risk of such a loan before moving forward. Additionally, you may find it wise to consult with a qualified attorney to discuss the benefits and drawbacks of using a community association loan to finance such a project. Once again, you can find a list of banks that may wish to lend your association money at http://www.caimdches.org/ListByCategory.aspx?Category=Banking. Good luck!

A condo owner does not like our cable provider and wants to either stop paying for the cable monthly or have us switch to another (faster internet speed) provider – who does not offer a bulk rate. The Board likes our current provider and is paying a bulk cable rate. How do we resolve this?

Mister Condo replies:

N.H., for the most part the Board is free to choose whichever service providers they wish for their buildings. The individual unit owner who stops paying his cable bills will very likely have his service terminated and may also face additional penalties and/or late fees if he doesn’t cancel through the proper channels. Individual unit owners who find themselves at odds over their condo association’s choice for bulk providers are often left with few other options if the utility does not have access to the common areas of the association, which the Board controls. Cellular service may be available but is generally a good bit more expensive than cable for television and Internet purposes. You may wish to consult with an attorney to see if your local laws supersede your association’s governance documents but, for the most part, the Board is the sole deciding authority on which services provider is used.

The best solution would be to work with the Board to see if there are alternatives in the association’s best interest. Faster Internet speeds, lower rates, better programming options are all reasons to change. However, if the Board is perfectly pleased with the current provider, the request is likely to fall on deaf ears. However, if enough unit owners demand change, the Board may find itself defending its position and individual Board members may find their positions challenged by new volunteers looking to serve on the Board just to bring about change in the bulk rate cable supplier.

We purchased the largest unit of 3 in a former single-family residence converted to 3 condo units in January on Cape Cod. The association is self-managed. According to the Master Deed our unit has 42.31% voting/ownership rights, next unit has 42.31%, the smallest end unit has 15.38%. The previous owners of our unit attached a mini split A/C-heating unit compressor to the outside wall of the smallest unit. Since we closed, that unit owner is insisting we relocate the compressor as it causes noise. We inquired with the current tenant of her unit and he reported the unit does not bother him at all. We are being told that the past owners of our unit and the smallest had a “verbal agreement” to only run the A/C compressor from May-September. This is all news to us! Now the smallest unit owner wants the condo association (which we have made several payments of HOA dues to) to pay for the relocation of the compressor at a cost of $3,000. The mini split was a plus for us in determining our purchase as we use them in our primary residence so we would prefer everything be left “as is”… as when we made our purchase. Please help! -Stuck in the Middle

Mister Condo replies:

K.T., your question reminds me of how even the smallest of condominiums (3 units in a former single-family home) can experience the largest of problems. I am truly sorry for the entanglement you now you find yourself in. When I first looked at your letter, I knew I would need to call in reinforcements as I am neither an attorney nor am I an expert in Massachusetts Community Association law. Fortunately for both of us, I do know some excellent attorneys from your state who do specialize in condominium law. One was nice enough to offer the following opinion:

“Pursuant to Massachusetts General Laws Chapter 183A section 5, there is a statutory method for being given the right to mount your compressor in common areas. The statue provides that a majority of the Trustees grant you the right to the limited common area of the condominium. That grant must be signed by a majority of the trustees and you and any immediately adjoining unit owners (in this case the consent of the smallest unit where the compressor was mounted). The grant then is recorded at the registry of deeds and takes effect 30 days after recording. The fact that this was done before you took ownership does not change the outcome. You (or your predecessor) have essentially taken for yourselves real estate owned by all. 3 unit condominiums can be difficult if the 3 owners do not get along. Perhaps you can propose to the smallest unit taking the compressor off of her building’s wall, restoring the exterior to its condition prior to the installation and remounting it on your building wall. If she agrees then you can record the grant of limited common area to make this legal. I’m not sure of how your condominium documents read but most for 3 unit condominiums say all owners are trustees so your neighbor is likely a recorded trustee as well. But speak to an attorney in Massachusetts knowledgeable in condominium law so that they can offer you the appropriate legal advice.”

K.T., that sounds like real proper advice to me. I wish you all the best in straightening this matter out and enjoying your Cape Cod Condo.

My detached condo in Oakland County, MI is one of 188 units. Repairs are made by the condo for exterior walls, roofs, decks/railings. Maintenance and upkeep are required by the unit owner. My two-story deck in-ground corner support beams have wood rot/carpenter ant damage. The sprinklers on the common areas have not been positioned properly, causing the problem. I bought the condo “as is” this winter. Should the association be responsible for the replacement cost since their sprinklers were not adjusted? There was a sick, elderly person living in this unit for the past several years, so requests were not made for adjustments of sprinklers.

Mister Condo replies:

A.R., that is an excellent question. As you know I am not an attorney. Being from Connecticut I claim no expertise in Michigan Condominium law. However, I was able to reach out to one of my friends who does practice community association law in your state. Here is what this noted attorney had to offer:

“The answer depends on the language of the Condominium Documents. In most site condos, a co-owner would have the responsibility to maintain and repair a deck. Many documents also contain an incidental damage clause, which limits the Association’s liability to $500-$1000, for any damage caused by the general common elements. However, if the responsibility has been assigned to the association, the association would be responsible for the repair.”

That sounds like good advice to me A.R.. For further clarification, I have to recommend that you seek out a local attorney to guide you through the process. It may cost a little upfront for that advice but my guess is that it could be priceless in the long run. All the best!

My dog has been reported doing things outside that she is not doing. Do I have a right to ask for proof?

Mister Condo replies:

C.T., I am sorry that your dog has been accused of doing things outside that she isn’t doing. I assume these things are barking, jumping on people, digging up flowerbeds, or doing her business where she shouldn’t. All of these complaints are fairly common at condominiums that allow dogs as are the neighbor versus neighbor complaints that usually follow. If the Board or Property Manager is receiving complaints of rules violations, they have little choice but to assume the complaint is valid and then take appropriate action which is to send you a letter about the violation and/or issue you a fine for the violation. Unless your governing documents state otherwise, the complaint is the only proof that needs to be offered. The complaint is a record of the association and, as such, can be inspected by members of the association. As long as you are a unit owner, you can request to see a copy of the complaint(s). It is possible that another unit owner is trying to make your life difficult and it might help you to know who is complaining so that you can try to make things right with that person. If, on the other hand, you have video surveillance in your condo and there is evidence of you and your dog violating the rules of the association, you may have little choice but to change your behavior and take care that your dog’s behavior isn’t in violation of the rules of the community. Good luck!

Our Board passed an assessment of $2,460 for replacement of (2) individual Air Conditioning wall units per condo.

QUESTIONS:

1) Can the association mandate the type of AC unit that is installed inside the condos? – in particular, mandate the purchase of specific AC model, which is priced higher than other comparable AC units, and from a specific vendor?

2) Can unit owners purchase their own AC units according to their financial abilities, as long as the AC unit cover, which becomes part of the common area since it is visible to all, remains consistent with the one mandated by the association?

Mister Condo replies:

M.F., the short answer is “yes”, the Board can mandate the replacement model and type of wall air conditioners used by exercising their rights under your governing documents rules on architectural compliance. These particular models have been approved by the Board and may also meet other requirements such as noise and energy efficiency (if the association pays for electricity, which isn’t all that common). I can understand your desire to save money by purchasing a less expensive model but you should abide by the Board’s decision and play nicely here. I am guessing that there isn’t a tremendous savings by switching models (a few hundred dollars) but if there is, you may request the Board approve other models for future replacements. That won’t help this time but may give you options when they need replacing again, presumably in seven to ten years. Keep cool!

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Friendly Answers to your Condo Questions

Mister Condo is here to give friendly advice and promote awareness of how to make the most of your condominium living experience. “Ask Mister Condo” is the friendly place to ask questions about all things condo. Mister Condo knows a lot of the answers but when he doesn’t, he isn’t afraid to ask a local expert for help in answering your questions. Mister Condo is not an attorney and offers no legal advice in this column. He is a very well-mannered condominium dweller with many years of practical experience living in several of Connecticut’s fine condominium communities. He asks that you be well-mannered as well so we can all enjoy the advice presented in this column. Please note that questions are answered on a "first come, first served" basis and that there may be a delay before your question and answer appear. Thank you for your patience.